Hatziantoniou v Chief Commissioner of State Revenue

[2024] NSWCATAD 17

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

Hatziantoniou v Chief Commissioner of State Revenue [2024] NSWCATAD 17

Hearing dates:

29 September 2023

Date of orders:

15 January 2024

Decision date:

15 January 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

NS Isenberg RFD, Senior Member

Decision:

The decision under review is affirmed.

Catchwords:

MERITS REVIEW – NSW State taxes - revenue law – exemptions - onus – lack of objective evidence - credibility of the applicant as his sole witness – no reasons given for not calling other witness.

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Fair Work Act 2009 (Cth)

Land Tax Act 1956 (NSW)

Land Tax Management Act 1956 (NSW)

Taxation Administration Act 1996 (NSW)

Cases Cited:

B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187, (2008) 74 NSWLR 481

Chief Commissioner of State Revenue v Paspaley [2008] NSWCA 184

Cornish Investments Pty Limited v Chief Commissioner of State Revenue (RD) [2013] NSWADTAP 25

Nulty v Blue Star Group Ltd [2011] F WAFB 975

Texts Cited:

None cited

Category:

Principal judgment

Parties:

Evan Paul Hatziantoniou (Applicant)
Chief Commissioner of State Revenue (Respondent)

Representation:

Counsel:
O H Berkmann (Respondent)

Solicitors:
Applicant (Self-Represented)
Crown Solicitor (Respondent)

File Number(s):

2023/00104656

Publication restriction:

Nil

REASONS FOR DECISION

Background

1. These proceedings concern a dispute between Evan Paul Hatziantoniou (Mr Hatziantoniou or the Applicant) and the Chief Commissioner of State Revenue (Chief Commissioner or the Respondent) as to Mr Hatziantoniou’s liability to pay land tax in respect of residential land he owned situated at Bexley in New South Wales (NSW) (the Property). The relevant notice of assessment (the Assessment) was issued by the Chief Commissioner on 11 May 2023 in respect of the Property for the 2020 to 2022 land tax years inclusive (Tax Years),

2. Mr Hatziantoniou inherited the Property on 29 September 2017 from the estate of his late grandfather, George Lyris, who died on 15 February 2017.

3. By footnote number 1 in the Respondent’s submissions dated 13 August 2023 (RS), which was not disputed by Mr Hatziantoniou, the Chief Commissioner provided the following brief background concerning the Assessment:

The applicant's period of review initially included the 2018 and 2019 land tax years. By way of a reassessment on 11 May 2023, the respondent granted an exemption from land tax pursuant to Schedule 1A Clause 9 of the Land Tax Management Act 1956 [LTM Act] ('concession on death of owner'). The exemption granted by the respondent for those land tax years have no bearing in relation to the remaining land tax years in dispute.

4. In his unsigned written submission dated 29 June 2023, (AS) (the paragraphs of which are not numbered or otherwise identified), Mr Hatziantoniou identifies himself as the Applicant in the matter and states he is seeking a review of the Chief Commissioner’s decision to assess his liability for land tax on the Property, which he describes as his principal place of residence.

5. Mr Hatziantoniou states that, since disputing the Chief Commissioner’s claim, he has received an exemption under clause 9 of Schedule 1A [of the LTM Act}. He wishes:

“… to receive an additional exemption for the years 2020—2022 on the grounds that the four-year concession in clause 6 can be extended by the Chief Commissioner under the new clause 6(7A), which applies if the delay in completing building works was due primarily to exceptional circumstances beyond the control of the owner, and could not have reasonably been avoided by the owner…

Throughout this entire process I have been transparent with NSW State Revenue and the Chief Commissioner regarding my circumstances and the difficulties that I experienced in attempting to complete the renovations at my principal place of residence. These difficulties were due to personal financial constraints as a result of Covid, and restrictions that were enforced at the time by the NSW State government on tradesmen and the building industry as a whole, causing unforeseeable delays. I believe that this event qualifies as an occurrence of an exceptional, unprecedented circumstance, beyond my control, and warranting a further review into the Chief Commissioner's ruling.

After my grandfather's passing, I was intermittently living on the property during 2017—2018; however, I did not change any bills from my grandparent's name or change my address to reflect this situation, as I knew renovations would shortly be taking place. I have attempted to contact Energy Australia, as the electricity usage during this time would have supported my claim, providing evidence that, during the time when renovations were taking place (2019-21), no-one was living on the property. Unfortunately, Energy Australia has advised that their records only go as far back as 2021, by which time I had already changed the bill into my name. From what I was told, they have erased all records of George Lyris' payments and bill history.

Two years after my grandfather's passing, once my mother and aunt felt themselves emotionally capable of removing all my grandparents' belongings from the house (in late 2019), I started obtaining quotes and successfully completed installing the windows, just prior the onset of Covid. I also had obtained an electrical quote in 2019; however, once Covid 19 lockdowns were enforced, I was told by my tradesmen that they would not be able to complete the work, and could not provide a time frame for recornmencement. This was due in part to the travel restrictions. and in part to the offence to personal beliefs posed by vaccine requirements. All communication throughout this time was by phone, and consequently I am not able to provide written evidence to support the delays that occurred.

The original timeline, had these interruptions not occurred, would have achieved the completion of all renovations by 2020. During Covid, however, tradesmen frequently prioritised other work over mine, something which admittedly suited me at the time as I was becoming financially impacted by the pandemic. I then continued to oversee work completion throughout 2021; however, I was still struggling financially, and unable to adhere to the original timeline. I completed renovations 6 months after the deadline, in June 2022.

All renovations were completely financed by myself, with support from my parents, along with assistance from some friends and family, who helped with some of the work that needed to be completed at the house. I was unable to take out any loans at this time due my financial obligations. The total cost of the renovations was approximately $50,000, over the period 2020 -2022. I was unable to proceed with some of the provided quotes, such as that for the electrical work, and needed friends and family to help me out. This also contributed to delays, given that friends and family were committed to other jobs.

In summary, my building works have been attended by exceptional circumstances, the nature of which have unavoidably delayed the renovation of my grandfather's house.

They included delays that were to some extent impacted by the very extensive clean-out operation which needed initially to be carried out, legacy of the decades of prior occupation of the home by my grandfather, and involving the sorting, transport and disposal of very large quantities of his belongings. None of the building works could be carried out until this operation was completed.

Then, there were the totally unforeseeable and far-reaching impacts of COVID, during the period of renovation The effects of the pandemic were of course experienced by many, but in my case caused a curtailment of my business operations, with the consequent financial constraints resulting in a limiting of resources available for renovations. In addition, there were of course limitations imposed by lockdowns and a general scarcity of tradespeople. It was, quite simply, extremely difficult during this time to ensure any type of continuity or momentum in the scope of works.

At all times, I have tried to maintain a high level of diligence in pursuing the building works within the limits of my capabilities, and have attempted at all times to be transparent and honest about progress that was made. Now, I ask that fair and sympathetic consideration be given to those difficulties that were beyond easy rectification, or totally beyond my control. …”

The role of the Tribunal

6. The Tribunal was established by the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act). The objects of the CAT Act include enabling the Tribunal to review and determine appeals against decisions made by certain persons and bodies; enabling the Tribunal to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible; and ensuring that the Tribunal’s processes are open and transparent (ss 3(b)(ii) and (iii), 3(d) and 3(f)).

Jurisdiction of the Tribunal

7. Section 28 of the CAT Act provides “The Tribunal has such jurisdiction and functions as may be conferred or imposed on it by or under this Act or any other legislation.”

8. There is no dispute that the Tribunal is empowered to review the Assessment (ss 9 and 55 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act) and s 96 of the Taxation Administration Act 1996 (NSW) (TA Act)). Section 63 of the ADR Act requires the Tribunal, in determining an application concerning an administratively reviewable decision (such as the Assessment), to decide what the correct and preferable decision is having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law, and authorises the Tribunal to affirm, vary or set aside the administratively reviewable decision. If the Tribunal sets aside that decision the Tribunal is to make a decision in substitution for that decision or remit the matter for reconsideration by the administrator who made the decision.

Material before the Tribunal

Mr Hatziantoniou’s documents and oral representations

9. I observe that throughout these reasons, many of the statements made by Mr Hatziantoniou, both in writing and orally to the Tribunal during the hearing on 29 September 2023, were rejected as not being consistent with other statements made by Mr Hatziantoniou or as implausible for reasons referred to below or not being relevant to the issues before the Tribunal. Mr Hatziantoniou relied on the following documents and submissions.

10. Emails on or about March 2019 from Mr Hatziantoniou (pages 8 and 9 of s 58 documents) informed Revenue NSW and the Tribunal that Mr Hatziantoniou submits that:

1. At 25 March 2019, at about 4:39 PM he stated he was confused in that:

1. he had lodged an application within 2 years of Mr Lyris’ death;

2. He has been living in the Property since Mr Lyris died and was currently renovating [the Property]:

He requested clarification [of the Chief Commissioner’s position].

2. An email on or about May 2021 from Mr Hatziantoniou (pages 11 and 12 s 58 documents) informing Revenue NSW that:

1. he was owner of the Property and had been the owner since his grandfather passed away;

2. It took a long time for his mother and aunt to clear his grandparents’ belongings after a lifetime of acquiring them “… and it was extremely emotional for them …’’;

3. He started renovations in 2019 and had to stop during 2020 because of COVID19 “… and financial obligations …”.

4. He is still in the process of renovating and is providing photographs to support his statement.

5. The previous week he disconnected his grandfather’s phone which he had been paying for but not using.

3. Mr Hatziantoniou’s written and signed Administrative review application dated 30 March 2023 (the Application).

4. An email communication issued by Mr Hatziantoniou on 26 June 2023 to a person addressed as “Nontis”. The communication is headed “Request for Job Keeper Allowance”.

5. AS, dated 29 June 2023, addressed to the Registrar of this Tribunal. The document was headed “Evan Hatziantoniou v Chief Commissioner of State Revenue – NCAT File No 2023/104656” requesting a review of the Chief Commissioner’s decision to assess Mr Hatziantoniou’s liability for land tax between 2018-2022.

6. Email dated 19 July 2023 from Mr Hatziantoniou to two named officers of the NSW Crown Solicitor’s Office (CSO) (in partial response to a written request dated 11 July 2023 from one of those officers to Mr Hatziantoniou for information.)

11. Mr Hatziantoniou provided oral evidence and made oral submissions to the Tribunal on 29 September 2023.

The Respondent’s documents and oral representations

12. At [8] in RS the Chief Commissioner stated:

8. The respondent relies on the following materials:

(1)    Respondent's s.58 Bundle of Documents filed on 1 May 2023 (s.58 Bundle);

1. Respondent's Tender Bundle (RTB); and

2. Respondent's Bundle of Authorities.

   13. I note that during the hearing, while not necessarily referring to each document in the above bundles, the Chief Commissioner’s submissions included:

   1. A 3 page Objection determination notice issued by NSW Government Revenue on 3 February 2023 (the Objection Determination). The Respondent’s paginated, written and numbered submissions dated 18 August 2023 (RS). The Objection Determination was attached to the Application.

   2. Emails on or about Mar 2019 from Revenue NSW (pages 8 and 9 of s 58 documents) informed Mr Hatziantoniou and the Tribunal that Revenue NSW submitted:

   1. At 3:26 PM on 25 Mar 2019 … the deceased grandfather of Mr Hatziantoniou, died on 15/2/2017 and prior thereto used the Property as his Principal Place of Residence and a Schedule 1A clause 9 exemption applied for 2 years from the relevant date of death.

   2. At about 10:25 AM on 25 Mar 2019, Revenue NSW:

   1. informed Mr Hatziantoniou his Application was for a deceased exemption and if he provided more detailed information Revenue NSW would reconsider his Application; and

   2. requested Mr Hatziantoniou to provide information / documents sought in respect of 7 specific issues. The information / documents included a copy of Mr Lyris’ Will and Grant of Probate; the dates Mr Hatziantoniou moved into the Property as his home and then moved out of the Property to enable the renovations to take place; the date the renovations commenced, whether the renovations needed a “DA” [Development Application] from the Council and if so a copy of same together with a “…copy of the invoice / quote / payment of the renovation”.

   14. The Chief Commissioner also relied on oral submissions made to the Tribunal by Mr Berkmann on 29 September 2023.

Miscellaneous documents

15. I observe that both parties placed some reliance on the following documents:

1. An email dated 9 September 2021 from Revenue NSW to Mr Hatziantoniou which informed Mr Hatziantoniou that he had been granted an exemption from land tax, in respect of the Property, under Schedule 1A Clause 6 of the LTM Act for the 4 tax years following acquisition [2018 to 2021 inclusive] as it was his intended Principal Place of Residence. The email referred to certain legislative requirements in order for the exemption to apply and some circumstances which, if they occurred, would cause the exemption to be revoked (Tab 6, page 18 of the s 58 documents).

2. A written communication, dated 19 June 2023, to the Registrar of this Tribunal, issued by the Crown Solicitor’s Office (OSR) on behalf of the Chief Commissioner, in respect of orders made on 9 May 2023, certain administrative matters and legislative amendments assented to on 31 May 2023, together with draft consent orders.

16. All references to written submissions of the Chief Commissioner are to numbered paragraphs of RS unless stated to the contrary.

Consideration

The decision the subject of review by the Tribunal

17. Mr Hatziantoniou signed the subject application to the Tribunal (Application), to which was attached a copy of “the decision to be reviewed”. The attached document, issued 3 February 2023, was headed “Objection determination notice – section 93 [TA Act]”. The determination notice referred to a letter from Mr Hatziantoniou which objected to a 2018 to 2022 land tax assessment issued by the Chief Commissioner on 13 September 2022. That notice informed Mr Hatziantoniou his objection had been disallowed.

18. In Chief Commissioner of State Revenue v Paspaley [2008] NSWCA 184, the Court of Appeal said at [28]:

… the right of review under s 97 is given by reference to the operative decision of the Chief Commissioner and not to a ruling made on an objection. Although the existence of an objection is a necessary precondition to the power of review by the Court, and it is the taxpayer’s dissatisfaction with the determination of the objection which provides standing to seek review, it is the initial decision which is the subject matter of the review.

19. Section 96 of the TA Act provides a power of administrative review by the Tribunal. That power is commensurate with the Supreme Court’s jurisdictional power in s 97.

20. There is no dispute that while Mr Hatziantoniou was dissatisfied with the disallowance of his Objection, it is the Assessment, not the disallowance of the objection to the Assessment, which is the subject of review by the Tribunal in these proceedings. The parties dealt with the Application in these proceedings on the basis that the Tribunal was reviewing the Assessment rather than the Determination. I find that the Application be varied accordingly.

Onus of proof

Submissions as to onus by the Chief Commissioner

21. The Chief Commissioner submitted:

1. Pursuant to s. 100(3) of the Taxation Administration Act 1996 (TAA), the applicant has the onus of proving his case, on the balance of probabilities, which requires him to prove all matters necessary to enable the Tribunal to answer the statutory question in his favour (Cornish Investments Pty Ltd v Chief Commissioner of State Revenue (RD) [2013] NSWADTAP 25 at [30] and [37]; B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187, (2008) 74 NSWLR 481 per Allsop P at [104]).

2. On the question of discharging ones onus, it has long been the case that self-serving statements made by taxpayers who control and manage their affairs must be treated with caution, especially those that are general, vague and lacking the detail required to prove the facts in issue and should be weighed against the objective facts and inferences to be drawn from the taxpayer's activities generally (CDP V Pty Ltd v Commissioner of State Revenue [2016] VSC 322 at [22] and [35] per Croft J; Warriewood Valley Pty Ltd (as trustee for the Jill Trust) v FCT (1993) 26 ATR 270 at pg 281:21-28; Favello Pty Ltd & Ors v Chief Commissioner of State Revenue [2014] NSWCATAD 47 at [210]).

Concession by Mr Hatziantoniou

22. During the hearing Mr Hatziantoniou conceded that in order to succeed in his Application, it was necessary for him to prove all the elements of his case.

Findings as to onus

23. I find that s 100(3) of the TA Act provides that Mr Hatziantoniou has the onus of proving his case in a review by the Tribunal.

24. In order to be successful, Mr Hatziantoniou must prove his case on the “balance of probabilities” Cornish Investments Pty Limited v Chief Commissioner of State Revenue (RD) [2013] NSWADTAP 25 at [31] and B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187, (2008) 74 NSWLR 481 at [104].

25. I observe find that in the absence of relevant evidence in favour of Mr Hatziantoniou’s Application, the Assessment will be affirmed.

Substantive law

26. Mr Hatziantoniou did not dispute the accuracy or relevance of legislative excerpts included by the Chief Commissioner in RS.

27. There is no dispute that references in the LT Act to the "Principal Act" are to the Land Tax Management Act 1956 (NSW) (LTMA): s 1 of the LT Act.

26. In so far as the onus lies on Mr Hatziantoniou to prove all aspects of his case, and Mr Hatziantoniou has not supported certain of his submissions with either probative evidence or relevant authority, each such submission, if challenged by the Chief Commissioner, is rejected.

Overview of Mr Hatziantoniou’s case

29. The role of the Tribunal, as set out above, is to decide what the correct and preferable decision is, having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law. To find in favour of Mr Hatziantoniou, he is required to produce to the Tribunal specific, relevant, probative evidence and relevant legal authority, not merely unsupported generalised submissions and documents which are not relevant to specific legislation.

30. An example is Mr Hatziantoniou’s oral evidence in cross-examination that he had difficulty obtaining services of tradespeople (tradies) to carry out remediation work but had not provided any corroboration to his own evidence by way of evidence, whether written or oral, from other persons. Mr Hatziantoniou relied on his unsupported statement that he spoke to tradies, usually over the phone and he could not obtain corroboration because tradies did not use emails.

31. I observe that pages 11 and following, in Respondent’s Tender Bundle (RTB) includes Mr Hatziantoniou’s versions of questions from CSO to him concerning renovations proposed or carried out at the Property and Mr Hatziantoniou’s replies including tradies’ quotes, invoices, receipts and the like regarding aspects of renovations. These documents (and other related documents supplied by Mr Hatziantoniou) identify 13 tradies with email addresses (of tradies or their businesses) out of a total of documents from 16 tradies. Some of the pages of the 3 tradies without email addresses were partly concealed and may have contained email addresses. The tradies’ communications ranged from December 2019 to July 2022 inclusive.

32. I accept that there may well have been some telephone communications between Mr Hatziantoniou and tradies concerning renovations at the Property. There is no evidentiary support for Mr Hatziantoniou’s statement that a material number of the tradies he was in contact with did not use emails for business communications with him. Indeed, the evidence before the Tribunal is to the contrary. Accordingly I reject the statement.

Duration of renovations – commence use and occupation of the Property

33. It is not disputed that Mr Hatziantoniou conceded on several occasions that he exceeded the statutory time limit to commence use and occupation of the Property by 6 months.

34. On 5 November 2018 Mr Hatziantoniou made an Application for exemption for the Property – Deceased estate, to the Chief Commissioner. The details of relevant circumstances were it was the only property he owned, he is the grandson of the deceased owner, the late George Lyris who died on 18 February 2017; “…it is my primary residence. All bills are still under my grandfathers name and I have been renovating since my grandfather has passed away.”

35. On 25 March 2019, the OSR sent an email to Mr Hatziantoniou. The email referred to a variation lodged 6 February 2019 with an application for “exemption deceased estate”. The OSR stated a Schedule 1A clause exemption applied for 2 years from the date of death. If Mr Hatziantoniou required an exemption he was required to lodge another application for the exemption.

36. On 25 March 2019, Mr Hatziantoniou replied to the above email and mentioned he was confused. He had been living in the Property since Mr Lyris’ death and sought clarification.

37. On 26 March 2019, OSR replied and requested further information including seeking a copy of the Will; copy of the Probate, dates of moving into the Property as his residence, the dates he moved out of the Property for renovation, the dates renovations started, details of renovations, and his address after he moved out of the Property.,

38. On 11 May 2021, Mr Hatziantoniou wrote to the Respondent stating it took a long time for his mother and aunt to clear the Property of his late grandfather’s belongings. This was very emotional for them. In 2019 Mr Hatziantoniou had started renovations. He had to stop in 2020 due to Covid19 and financial obligations. He is still renovating. He was requesting an exemption from land tax as the Property was his only “… place of residence and will continue to be after [his] renovations.”

39. The s 58 document bundle includes at Tab 2 a completed “Application for Exemption – Deceased Estates”, a declaration signed by Mr Hatziantoniou dated 5 November 2018, and a covering email with a typed signature of Mr Hatziantoniou as Director of Client Relations of “Interport Marine”. The covering email, and presumably the Application, were emailed on 6 February 2019. The Application includes an apology for the “belated claim”. However, Mr Hatziantoniou provided no explanation for the 3 month delay between the date he signed the Application and the date he emailed the Application with a brief covering email.

Dates of renovations and Mr Hatziantoniou’s related concerns

40. There is no dispute that Mr Hatziantoniou seeks the exercise by the Tribunal of a statutory discretion in his favour under cl 6(7A) on 3 grounds, namely:

1. The reluctance of family members, after Mr Lyris’ death, to remove his personal possessions from the Property;

2. The impact of the Covid-19 pandemic restricting Mr Hatziantoniou’s business operations and creating financial constraints: and

3. The scarcity of tradies due to Covid-19 and related government restrictions.

41. In his Application to the Tribunal, signed 30 March 2023, Mr Hatziantoniou stated the grounds for his application were:

I understand I was in breach of the time limit by 6 months, however, I am appealing on the grounds of no precedents exist for Covid-19 which delayed my ability to finance and employ contractors, resulting in significant delays. The Government during the pandemic made numerous concessions to support Australians during this difficult time in some capacity. I was aIso financially impacted during this time with no government assistance. Finally, my intention as always for this to be my principal place of residence post renovations, I utilised the property prior to commencing the renovations. This is supported by the utilities showing usage and being in my deceased grandparents [sic] name until I nearly completed the renovations.

42. Mr Hatziantoniou submitted in the 2^nd paragraph of AS that the new cl 6(7A) of Schedule 1A of the LTM Act enables the Chief Commissioner to extend the 4 year exception in cl 6 if the delay in completing building works “was due primarily to exceptional circumstances beyond the control of the owner, and could not have been avoided by the owner.”

43. Mr Hatziantoniou continued in the 3^rd and 5^th paragraphs to express his belief that the grounds referred to above qualify “ … as an exceptional unprecedented circumstance, beyond [his] control …” which warrant a further review into the Chief Commissioner’s “ruling”. However, Mr Hatziantoniou produced no relevant judicial or tribunal authority to support that belief.

44. Despite having the opportunity to provide written submissions in response to the Chief Commissioner’s submissions in RS, and despite bearing the statutory onus of having to positively prove all elements of his case, Mr Hatziantoniou chose not to respond to the Chief Commissioner’s submissions in RS. Nor did Mr Hatziantoniou provide any evidence from any witnesses, including members of his family such as his mother, father and aunt as well as tradies from whom he obtained quotes and invoices for his renovations. Mr Hatziantoniou provided no reasons for his failure to provide such evidence. This lack of supporting evidence without explanation limited the plausibility of Mr Hatziantoniou’s evidence and did not assist his case.

45. Mr Hatziantoniou provided no authority as to why the facts in evidence justified the phrase “exceptional circumstances” applying to his case.

46. The Chief Commissioner conceded, in RS under the heading “E.1 – Discretion to Extend the Clause 6 Exception” at paragraphs [47] to [71], the general validity of the statutory principle in Mr Hatziantoniou’s above analysis. However, unlike Mr Hatziantoniou, the Chief Commissioner provided a plausible analysis of the statutory conditions which must exist so as to permit the Chief Commissioner, and in these proceedings, the Tribunal,

“… to extend the period of 4 tax years referred to in Clause 6(3)(a) or (b) for up to 6 tax years if the Chief Commissioner is satisfied as to three conditions:

(1) that there has been a delay in the completion of building works or other works necessary to facilitate the owner's intended use and occupation of the land as a principal place of residence; and

(2)   the delay is due primarily to exceptional circumstances beyond the control of the owner; and

(3)   the delay could not reasonably have been avoided by the owner. “

47. Mr Hatziantoniou conceded that the required condition that there had been a delay in completion of the building works had occurred.

48. The Chief Commissioner considered the words “exceptional circumstances” in the context of whether the delay was primarily due to circumstances beyond Mr Hatziantoniou’s control and at [50] provided extracts from the Second Reading Speech by the Minister for Finance describing the purpose of cl. 6(7A) of the LTM Act.

49. At [51] in RS, the Chief Commissioner submitted at [13] a summary by the Full Bench of the Full Court in Nulty v Blue Star Group Ltd [2011] F WAFB 975 of the meaning of “exceptional circumstances” within the context of an application made pursuant to s 365 of the Fair Work Act 2009 (Cth).

1. In summary, the expression “exceptional circumstances has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course. or unusual. or special or uncommon but need not be unique. or unprecedented. or very rare. Circumstances will not be exceptional if they are regularly. or routinely. or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe "exceptional circumstances" as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural "circumstances" as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of "exceptional circumstances" includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.

(underlining added).”

50. Mr Hatziantoniou produced no authority contrary to the Full Court’s above analysis nor the Chief Commissioner’s submission that the analysis applied to the facts before the Tribunal.

Delays to the Property being made ready for renovations to be carried out

Mr Hatziantoniou’s initial evidence

51. Mr Hatziantoniou submitted that the desired renovation work could not be commenced until his grandfather’s substantial personal possessions (chattels), which were numerous, had been removed. This submission contradicts the second sentence in the first paragraph of Mr Hatziantoniou’s email of 6 February 2019 to [email protected] where he states "Since my grandfather has passed away I ... have been renovating the house [since then] and currently ongoing ..." The email is found at page 3 of the s 58 documents. Mr Hatziantoniou’s submission that his mother and aunt were very distraught in relation to Mr Lyris’ death, is not disputed despite the lack of supporting evidence. However, there was no supporting evidence, including by any person other than Mr Hatziantoniou, that Mr Hatziantoniou’s mother and aunt resided intermittently at the Property and were emotionally unable to remove Mr Lyris’s chattels from the Property for some 3 years after his death.

52. In cross-examination Mr Hatziantoniou agreed that it suited him for the renovations to be delayed because he had financial problems.

53. On 23 June 2023, the CSO sent an email (the 23 June CSO email) to Mr Hatziantoniou to the effect that the Tribunal had made orders on 2 May 2023 that Mr Hatziantoniou was to file and serve his submissions and evidence by 6 June 2023 and stating the CSO had not received any material from him.

54. Mr Hatziantoniou provided a partial response to the 23 June CSO email by email on 28 June 2023 (the 28 June Hatziantoniou response), extracts from which are referred to in these Reasons.

55. During his cross-examination, Mr Hatziantoniou said his mother decided who was to stay at the Property after his grandfather’s death and for how long. He initially confirmed that at the relevant time he owned the Property and repeated that his mother made the decision as to who would reside there. He initially supported his evidence by saying he had given his mother power to make such decisions. Subsequently, he reversed that statement and said words to the effect that decisions as to the occupancy of the Property were made solely by him and not by any-one else.

Other evidence

56. In the Application for Exemption – Deceased Estates (Deceased Estates Application) signed by Mr Hatziantoniou on 5 November 2018, (s 58 documents page 4) Mr Hatziantoniou claimed the Property was the only property he owned, it was his primary residence and he had “been renovating since [his] grandfather passed away” on 15 February 2017. The covering email dated 6 February 2019 which accompanied the Deceased Estates Application to OSR, included a statement by Mr Hatziantoniou that he had been renovating the Property since his grandfather passed away and the renovations were “currently ongoing”. In cross-examination, Mr Hatziantoniou’s evidence included that “renovating” included the process of removing items from the Property; his mother was staying at the Property; and the removal was a slow process. Mr Hatziantoniou confirmed to the Tribunal that his statement that he had been renovating the Property since the death of his grandfather was correct.

57. Mr Hatziantoniou’s oral evidence was that his mother stayed intermittently at the Property from his grandfather’s death in February 2017 until August 2019 and continued removing Mr Lyris’s chattels until March 2020. On being reminded that he acquired the Property in September 2017, Mr Hatziantoniou agreed that the removal of the chattels took some 2 ½ years.

58. Mr Hatziantoniou agreed that he could have removed Mr Lyris’ assets before March 2020 but did not do so because of his mother’s emotional state. I again observe that Mr Hatziantoniou’s mother did not give evidence in the proceedings, nor was any expert evidence provided to the Tribunal as to her physical, psychological or emotional status at any time. No reason was provided to the Tribunal regarding the failure to present such evidence.

59. Mr Hatziantoniou agreed that the decision to defer removing Mr Lyris’ chattels from the Property was his choice out of respect for his mother’s wishes. I reject that reason as contrary to the weight of evidence before the Tribunal.

The impact of Covid-19 restricting Mr Hatziantoniou’s business operations and creating financial constraints

60. Mr Hatziantoniou sent to the Respondent a copy of an email dated 23 June 2003 he had sent to his tax agent (on the letterhead of one of Mr Hatziantoniou’s businesses) stating he would like to apply for the job keeper allowance ”due to the severe impact Covid-19 has had on [his] business”. The email included a “month to month summary of how this pandemic has effected [my] business with respect to turnover” for the months of March, April, May and June. The summary for each month was less than the summary for each immediately preceding month.

61. These amounts (which I assume may not accurately include the end of the 2023 financial year (from 23 or 24 June to 30 June, as the email was dated 23 June) relate to one only of several business interests in which Mr Hatziantoniou was involved. No evidence has been brought to my attention that Mr Hatziantoniou sent to the Chief Commissioner, or the Tribunal, any response from Mr Hatziantoniou’s tax agent nor was any evidence brought to my attention to the effect that Mr Hatziantoniou or any agent made an application for the job keeper allowance on his behalf.

62. Under cross-examination Mr Hatziantoniou said he was aware of no reason by the government not to provide him with financial assistance. This evidence seems disingenuous to me having regard to the lack of evidence that any application for assistance was actually made to the government by Mr Hatziantoniou or anyone on his behalf.

63. In response to a request to Mr Hatziantoniou for information regarding his financial affairs, including copies of Mr Hatziantoniou’s personal income tax returns (ITRs) for the 2018 to 2022 financial years (inclusive), Mr Hatziantoniou provided to the Chief Commissioner copies of his (partly redacted) ITRs for the 2017 to 2021 financial years (RTB pages 76 to 132). There were no net taxable losses in any year. All ITRs showed that the net taxable income (NTI) in each year exceeded the NTI during the immediately preceding year, other than for the 2021 NTI. The NTI for 2021 exceeded all years other than the 2020 financial year.

64. Mr Hatziantoniou informed the Chief Commissioner that the ITR for 2022 was not available as Mr Hatziantoniou’s accountant was still finalising that return.

65. Notwithstanding the generally increasing net income disclosed by the above ITR’s, in his re-examination, Mr Hatziantoniou informed the Tribunal that he did not agree with Mr Berkmann that he was not having financial difficulties throughout that period.

66. Mr Hatziantoniou’s evidence was that other than funds available from his friends and family (referred to elsewhere in these reasons) the funds available for the renovations were all to be drawn from only one of his businesses and he referred solely to business worksheets of that business for the 2017 to 2021 financial years inclusive, to the exclusion of all other sources of Mr Hatziantoniou’s income.

67. Mr Hatziantoniou said his overall income was reduced by his cost of living and helping out his family and his expenses were increasing. Mr Hatziantoniou provided no evidence (including bank records) to substantiate these claims, nor so far as I am aware, did any of his family members or his accountant(s) provide any such evidence.

68. Mr Hatziantoniou confirmed to the Tribunal that he did not at any time provide to the Chief Commissioner or the Tribunal the overall details of his assets or liabilities.

69. Mr Hatziantoniou was asked whether he had provided to the Tribunal full details of every business interest he had during the relevant period. He answered, “not directly.”

70. Mr Hatziantoniou was then asked if he could answer that question with either “yes or no.” Mr Hatziantoniou did not answer that supplementary question.

Other evidence of Mr Hatziantoniou

71. During cross-examination, Mr Hatziantoniou said he recalled that he informed the Chief Commissioner that he was unable to move into the Property until June 2022. After further questioning Mr Hatziantoniou conceded that he made that decision by himself without input from any other person. I observe that Mr Hatziantoniou’s evidence as to the actual date on which he moved into the Property after Mr Lyris’ death varies from time to time.

72. The Objection determination notice issued 3 February 2023 stated that in Mr Hatziantoniou’s objection he stated the proposed renovations to the Property were delayed due to Covid-19 and his financial considerations. He also agreed that the Property needed a complete renovation. Mr Hatziantoniou informed the Tribunal that no other evidence had been provided to the Tribunal and he was relying solely on his opinion with no input from anyone else.

71. Mr Hatziantoniou conceded that he had no building or trade qualifications.

72. Mr Hatziantoniou informed the Chief Commissioner that the Property had been used and occupied as his Principal Place of Residence since June 2022 and as such no land tax should be applied.

73. In cross-examination Mr Hatziantoniou was reminded that he had already conceded that he had not provided the Tribunal with full picture of his assets and liabilities. Mr Hatziantoniou said he believed he had covered that evidence of funds to be allocated for the proposed renovations had been highlighted at page 115 of RTB.

74. I find that page 115 of RTB is headed Business Worksheet and is page 9 of 9 of Mr Hatziantoniou for the ITR for the 2020 financial year of a business apparently associated with Mr Hatziantoniou with data under 3 subsidiary headings. The subsidiary headings are “INCOME”, “EXPENSES” and “TOTAL BUSINESS INCOME / LOSS”. The place of business bears no apparent relationship to the Property and neither the Income nor the expenses bear any apparent relationship to the subject renovations other than that the TOTAL BUSINESS INCOME / LOSS was a positive amount.

75. Mr Hatziantoniou declined to concede that page 115 was not a document that identified the funds required to carry out the renovations at the Property.

76. Mr Hatziantoniou was asked if he was aware of any document before the Tribunal which contained the pre and post Covid-19 cash situation with respect to funding the renovations. Mr Hatziantoniou referred the Tribunal to page 127 of RTB. I find that page 127, was similar in format to page 115 with different amounts to page 115. I also note that Mr Hatziantoniou pressed the point that the TOTAL BUSINESS INCOME / LOSS at page 127 indicated that the business which was relevant to the data on pages 115 and 127 changed from a profit in 2020 to a loss in 2021. I asked Mr Hatziantoniou whether there was any evidence that the rent of nearly $250,000 paid by that business in 2021 was a market rent. Mr Hatziantoniou replied “No” and asked me to note that he did not have any advice at that time.

77. For the record, I note Mr Hatziantoniou’s statement that he lacked advice, the amounts in pages 115 and 127 of RTB, and Mr Hatziantoniou’s ongoing failure to consistently provide clear answers to questions asked of him in cross-examination.

78. I repeat my above findings that Mr Hatziantoniou’s ITRs in evidence for the 2017 to 2021 financial years, disclose that his net taxable (personal) income was a positive amount for each year during the period and his income for 2021 exceeded that of all years other than 2020.

79. In the circumstances I am not satisfied on the balance of probability that the objective evidence before the Tribunal supports Mr Hatziantoniou’s expressed belief that he had provided evidence that he had highlighted the source of funds for the proposed renovations. I also note that I am not aware of objective evidence before the Tribunal that there are any documented records supporting Mr Hatziantoniou’s oral evidence that a decision had been made at any relevant date that the subject renovations would be funded from Mr Hatziantoniou’s nominated business. I reject Mr Hatziantoniou’s submissions to the contrary.

80. I have considered Mr Hatziantoniou’s submissions (together with his supporting evidence (and authorities to the extent that any were provided to the Tribunal) and the submissions, evidence and authorities of the Respondent.

81. I note that Mr Hatziantoniou repeated similar unsupported submissions on several occasions. I have dealt with such repeated submissions once only and not repeated my observations and findings on each occasion the same substantive submission was made.

82. I also observe that Mr Hatziantoniou made several unsubstantiated submissions to the Chief Commissioner in written communications prior to the hearing and orally to both the Chief Commissioner and the Tribunal on 29 September 2023. I find that none of the unsubstantiated submissions which I have rejected in these reasons, provide material support to Mr Hatziantoniou’s claims.

Findings and decision

85. Having regard to my above findings, I find, on the balance of probability, on the material before me, that Mr Hatziantoniou has not satisfied his statutory onus. Accordingly, the correct and preferable decision of the Tribunal is that the decision of the Chief Commissioner under review is affirmed.

Orders and directions

1. The decision under review is affirmed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Amendments

22 April 2024 - 1. "surcharge land tax" removed from the "Catchwords" section on cover page.

2. Paragraph [1] the word "surcharge" removed, should only be "land tax".

Decision last updated: 22 April 2024